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2017 DIGILAW 796 (KAR)

Chinnappa v. Mahadevi

2017-04-25

K.SOMASHEKAR

body2017
JUDGMENT : K. Somashekar, J. Being dissatisfied with the quantum of compensation awarded by the Presiding Officer. Fast Track Court, Khanapur and MACT in MVC No.43/2007, dated 2-7-2010, awarding of compensation in a sum of Rs. 3,16,500.00 with 9% per annum interest, the claimants have preferred this appeal, seeking enhancement of compensation. 2. Heard the learned counsel for the parties and perused the records. Though the matter is listed for admission today, with consent of the counsel on both sides, the same is heard for final disposal. 3. The factual matrix of the case are that:- On 24-7-2006 at about 4.30 p.m., when the deceased, namely, Chinnappa Ningappa Bhanvi, aged 26 years was standing by the side of the road near K.K. Koppa, a truck bearing No. KA-29/A-7128 came from Hirebagewadi and dashed against him. Due to the impact, he sustained crush injury to his left leg. Subsequently, as the said wound was not cured and on account of septicemia and gas gangrene, he died on 23-2-2007. 4. The legal heirs/dependents of the deceased-Chinnappa Ningappa Bhavi, initially filed a claim petition u/S. 166 of the Motor Vehicles Act, (hereinafter referred to as ' the Act-for short) and after the death of Ningappa Bhavi, the same was amended for Section 163-A of the Act. The claimants have sought for compensation of Rs. 12,00,000-00/-. 5. On service of summons the insurer-respondent No.2 contested the claim petition. 6. In support of their claim, the claimants have examined PW1 to PW3 and got marked Ex.P1 to Ex.P10 on behalf of the insurer-respondent No.2 the insurance policy was got marked as Ex.R1. 7. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident has occurred due to rash and negligence of the offending vehicle. The Tribunal took the income of the deceased at Rs. 3000.00 per month and after deducting 3rd of it towards his personal and living expenses assessed the net income of the deceased at Rs. 2,000/- per month. Taking the age of the father of the deceased being 50 years the Tribunal applied the multiplier 13 and awarded compensation of Rs. 3,12,000/- towards 'loss of dependency'. Further, under conventional heads the Tribunal awarded a sum of Rs. 4,500/-. 2,000/- per month. Taking the age of the father of the deceased being 50 years the Tribunal applied the multiplier 13 and awarded compensation of Rs. 3,12,000/- towards 'loss of dependency'. Further, under conventional heads the Tribunal awarded a sum of Rs. 4,500/-. Thus, in all the Tribunal has awarded 3,16,500/- with interest at the rate of 9% per annum from the date of petition till the date of realization under the following heads:- Sl. No. Headings Amount Rs. 1 Loss of dependency 312000-00 2 Funeral expenses and Transportation of dead body 2000-00 3 Loss of estate 2500-00 Total 316500-00. Being not satisfied with the quantum of compensation, the father of the deceased alone has preferred the present appeal seeking enhancement of compensation. However, the other dependents of the deceased have not preferred appeal. 8. During the enquiry before the Tribunal, the claimants have established the occurrence of the accident on 24-7-2006, involvement of the offending vehicle, its insurance coverage with the respondent No.5 herein. The same has attained its finality, inasmuch as, the same has remained un-challenged by the insurer. 9. The learned counsel for the appellant vehemently contended that the Tribunal has committed an error in applying the multiplier 13, taking the age of the father of the deceased, to reckon the compensation payable towards 'loss of dependency'. The Tribunal ought to have taken the age of the deceased and would have applied the multiplier 18. Further, he contended that the compensation awarded under other conventional heads are the lower side and hence he seeks enhancement in the compensation. 10. Per Contra, the learned counsel appearing for the insurer submitted that the Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal. 11. On careful evaluation of the material on record, it is seen that as on the date of accident the deceased was aged 25 years and hence, the appropriate multiplier that would be made applicable as per the dictum of the Apex Court in the case of Sarala Verma's case ( AIR 2009 SC 3104 ) is 18. 11. On careful evaluation of the material on record, it is seen that as on the date of accident the deceased was aged 25 years and hence, the appropriate multiplier that would be made applicable as per the dictum of the Apex Court in the case of Sarala Verma's case ( AIR 2009 SC 3104 ) is 18. There are some substance in the contention of the learned counsel for the appellant that the Tribunal committed an error taking the age of the father of the deceased to assess the 'loss of dependency' and applying multiplier 13 to determine the compensation payable under the head of 'loss of dependency'. Therefore, it requires re-appreciation of the evidence on record so far as 'loss of dependency' is concerned. However, in the absence of any documentary proof as regards the income of the deceased, the Tribunal justified in taking the income of the deceased at Rs. 3,000/- per month. Therefore, it would be appropriate to adopt the multiplier of 18 instead if 13. Thus, the compensation payable towards 'loss of dependency' would comes to Rs. 4,32,000/- (3000 x 12 = 36,000-1/3 = 24,000 x 18 = 4,32,000). On careful consideration of the material on record, this court is of the considered view that the compensation awarded by the Tribunal under other conventional heads are just and reasonable and does not call for interference from this court. Thus, in all, the claimant is entitled to total compensation of Rs. 4,36,500/- as against Rs. 3,16,500/- awarded by the Tribunal. 12. Accordingly, the appeal is allowed in part. In modification of the impugned judgment and award dated 2-7-2010, passed by the Presiding Officer, Fast Track Court and MACT, Khanapur in MVC No. 43/2007, the compensation payable to the claimant is enhanced from Rs. 3,16,500/- to Rs. 4,36,500/- (Four lakhs thirty six thousand five hundred only). The enhanced compensation would come to Rs. 1,20,000/-. The 5th respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. However, the impugned judgment and award, insofar as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered. 13. There shall be no order as to the costs. Office to draw the decree accordingly.